At the AMCHAM forum on Ease of Doing Business in Ghana
By: Anthony Sedzro
The Attorney-General and Minister for Justice, Gloria Akuffo, has assured that the new Companies Bill 2013, which is meant to replace the current Companies Act, 1963 (Act 179) will be passed into law under her tenure.
When passed, it will introduce some crucial changes, chief among which is to make the Registrar-General’s Department (RGD), the institution that registers and incorporates businesses, registration of businesses, industrial property, marriages, administration of estates, and public trustees, insolvency and winding up issues, autonomous.
Currently, the law that regulates companies in the country is the Companies Act, 1963 (Act 179). Attempts have been made from 2008 to revise it to conform to modern trends. A Business Law Reform Committee of Experts was set up and it prepared a report which is captured in the Companies Bill 2013 and has been in parliament ever since.
Gloria Akuffo said so in a speech read on her behalf by Mavis Amoah, the Director of Legislation at the Attorney-General’s (AG) Department, at a forum on the topic, “Enhancing The Ease of Doing Business: Reforming The Company & Insolvency Laws in Ghana”, organised by the American Chamber of Commerce, Ghana (AMCHAM) with support from the Ghana Association of Restructuring & Insolvency Advisors (GARIA) at the La Palm Royal Beach Hotel, Accra on August 30.
The Attorney-General promised that the Bill will be passed.
It is one of my priorities as the Attorney-General to ensure that the Companies Bill currently before Cabinet is enacted
“Unfortunately, the Bill could not be passed into law before the last Parliament was dissolved. It is one of my priorities as the Attorney-General to ensure that the Companies Bill currently before Cabinet is enacted,” she promised.
She revealed that some of the proposed changes in the Bill include: abolition of the practice of issuing a certificate to commence business; abolition of the mandatory requirement for objects on incorporation (now optional); abolition of the requirement of publication of the certificate to commence business.
Registrar of Companies
The RGD is currently an agency under the Ministry of Justice but when it becomes independent, it will no longer draw subventions from the Consolidated Fund. More importantly, the RGD will be replaced by the Office of the Registrar as a body corporate, separate and distinct to take its own decisions just like the Companies House in the United Kingdom (UK). It will also have its own Board of Directors and a lot of RGD’s work will be migrated online.
…the proposed Office of the Registrar will play a key role to respond proactively and expeditiously to address the needs of the business community…
According to the AG, “…the proposed Office of the Registrar will play a key role to respond proactively and expeditiously to address the needs of the business community…ensuring that momentum for the ease of doing business is increased with time.”
Looking at the length of time that the Companies Bill 2013 has delayed in Parliament, other speakers called for immediate passage instead of waiting for the Bill to be perfect.
Professor Philip Bondzie-Simpson, the rector of the Ghana Institute of Management and Public Administration (GIMPA), admonished that, if we seek perfection, the new Company’s Bill will not be passed into law.
“If we are not careful, and we are aspiring to get a perfect document this [Companies Bill] will never pass. The challenge is, do we think that the document in its present form is substantially good? Does it meet the requirements of the business and the country such that we can let it pass?” he queried.
Prof Bondzie-Simpson continued: “…And, as we are working it, if there are challenges, do we make section by section amendments? He argued that all is needed is the will to say “here is enough” for now, so that a realistic and modern law could eventually exist to benefit the nation. It would not stop subsequent pursuit to perfect it.
He further said the existence of the omnibus clause in the Bill, in any event, says we can do any of those other changes when the need be.
V.C.R.A.C. Crabbe, the Statute Law Commissioner and a former Supreme Court judge, echoed Bondzie-Simpson’s view saying “…Please realise that it is not perfect and it will not be perfect… the issue of continuity is very important because, when law is made, what we need to appreciate is that we must allow it to run its course. In the process, make the changes…”
Felix Ntrakwah is a corporate lawyer and founder of Ntrakwah & Associates, a law firm. He introduced an interesting angle that says that, mostly, the law as it is on the books is different from the people who implement it. Ntrakwah said it is not unusual for a particular law to say one thing and the civil servants and officials in government agencies who operate the law to use different rules. He advised that the unwritten part of the law is crucial. Prof Crabbe concurred and added: “A law is as good as the people who implement it.”
Tony Oteng-Gyasi, CEO of Tropical Cable and Conductor Limited and a member of the Committee of Experts, explained that the world has changed so much and a reform in our business law is urgent.
Madam Vicky Bright, a lawyer pointed out that the current Insolvency Act, 2006 (Act 708) has limitations. She explained that, amongst other revisions, a new Insolvency section will be set up in the Registrar of Companies and they will be trained to handle insolvency and winding up cases.